Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCStruck OutPetition dated 16/10/2019 (Kitale ELC)· [2020] KEELC 2197 (KLR)

Jane Namalwa Wakhungu v National Land Commission [2020] KEELC 2197 (KLR)

Environment and Land Court
21 May 2020
2,410 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

#

Kenya's Environment and Land Court struck out a landowner's petition, ruling that disputed land titles must be proven through a full trial, not constitutional petitions.

What this practically means

#

Executive summary

#
The petitioner, registered owner of WAITALUK/KAPKOI BLOCK 10/KAPKOI SISAL/404, petitioned the National Land Commission alleging that its decision, communicated through Gazette Notice Vol. CXXI No. 27 of 1st March 2019, recommending revocation of her title without a hearing violated Articles 40, 47 and 50 of the Constitution and the Fair Administrative Action Act. She sought declarations of unfair administrative action and an order of certiorari to quash the Gazette Notice. The respondent filed no papers and the petition was unopposed. The court, however, noted that the petitioner had candidly disclosed a pending suit, Kitale ELC Land Case No 90 of 2018, in which the same parties and the same subject matter were already litigated, with the school and counterclaimants contesting the legality of titles carved from the parent parcel. The court framed four issues, chief among them whether its jurisdiction was properly invoked. Relying on Sanghani Investments and its own earlier decision in Kibitok, the court held that disputes over ownership and validity of land title require viva voce evidence and cross-examination in an ordinary suit, and cannot be resolved in petition or judicial review proceedings resting on affidavit evidence. The petition was found to be an ordinary private law claim dressed in constitutional language, premature and unfit for determination while title remained disputed. The court declined to determine the remaining issues and struck out the petition with no orders as to costs.

Key legal issues

#
01

Whether the petition was properly before the court given the pending suit Kitale ELC Land Case No 90 of 2018

Holding

The petition was premature and improperly invoked the constitutional jurisdiction because the same parties and subject matter were already before the court in an ordinary suit

Reasoning

The petition and the earlier suit involved the same parties, the same subject matter and the same decision of the respondent. The legality of the titles resulting from subdivision of the parent parcel was already in dispute in the earlier suit, where the petitioner had chosen the proper plaint procedure allowing evidence and cross-examination. Determining the petition would implicitly decide title and foreclose proof at trial, so the constitutional jurisdiction was prematurely invoked.

p. 2
02

Whether declarations and certiorari could issue on the disputed ownership of land

Holding

No - declarations on land ownership require viva voce evidence and cannot be granted in judicial review or petition proceedings resting on affidavits

Reasoning

Following Sanghani Investments, the court noted judicial review is unsuitable for determining ownership of land because authenticity of documents and oral testimony must be tested by cross-examination at a full hearing. Petitions, like judicial review, depend on affidavit evidence. A claim dressed in constitutional language but essentially an ordinary private law claim over title cannot be entertained in petition form.

p. 3

Legal principles established

#
  • Where the ownership or validity of title to land is in dispute, the matter must be tried by way of ordinary suit with viva voce evidence, not by petition or judicial review based on affidavit evidence.
  • A constitutional petition over land cannot be used as a vehicle to prove the validity of title; the court in a petition must confine itself to violations of constitutional rights.

Court orders

#
  1. 1.The petition is struck out with no orders as to costs

Authorities

#

Legislation

  • Constitution of KenyaArticles 40, 47, 50, 68(3), 165(5)(b)
  • Fair Administrative Action Actnot specified
  • National Land Commission Actsection 14
  • Evidence Actnot specified

Cases cited (7)

  • Sanghani Investments Ltd -vs- Office in Charge Nairobi Remand & Allocation Prison
    [2007] 1 EA 35
  • Rep -vs- Ex Parte Karia Miscellaneous
    534 of 2003
  • Isaac Kipleting Kibitok Alias Isaak Kipleting Kibitok vs The Secretary Board Of Governors, Cherangany Primary School, The Principal Secretary Ministry Of Education and The Hon. Attorney General
    Kitale ELC Petition No. 4 OF 2018
  • Dyno Holdings Ltd -vs- National Land Commission & Another
    [2018] eKLR
  • Chemey Investment Ltd -vs- A.G. & 2 Others
    [2018] eKLR
  • Niaz Mohamed Jan Mohammed -vs- Commissioner of Lands & 4 Others
    [1996] eKLR
  • Funzi Island Development Ltd & 2 Others -vs- County Council of Kwale & Others
Jurisdiction invoked
Articles 40, 47 and 50 of the Constitution; Article 165(5)(b) referenced in the pleadings

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Jane Namalwa Wakhungu v National Land Commission [2020] KEELC 2197 (KLR)", Case Analysis (2020). Petition dated 16/10/2019 (Kitale ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/2197/eng@2020-05-21

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.